State of Punjab vs Bagga Singh @ Baggi

J. S. Sekhon, J. (Oral)

Bagga Singh accused respondent, was apprehended by the Police party headed by A.S.I. Kuldip Singh on 23.7.19" at Busstand Muktsar in the area of Jallalahad town. when he reached there from the side of village Falinwara and tried to slip away at the sight of the police party. The accused was found carrying a gunny bag on his head, which in turn contained a rubber tube. The rubber tube was containing liquor. A sample of 375 mls. of liquor was separated and sealed while the remaining liquor measured 40 bottles and was retransferred in the same tube. All these articles were taken into possession vide seizure. memo Exhibit PA A case. under section 61 of the Punjab Excise Act, 1914 was got registered against the accused vide memo Exhibit PB/1 on the basis of intimation Exhibit PB. The investigator also prepared site plan, Exhibit PC, besides recording statements of the witnesses. The sample of liquor was, sent to the Chemical Examiner,'' who vide his report, Exhibit PD confirmed it to be illicit liquor. After the completion of investigation, the accused was arraigned for trial on such like allegation.

Before the trial Court, in order to prove its case, the prosecution examined ASI Kuldip Singh (PW1) and Head Constable Sarwan Singh (PW2). The report Exhibition PD of the Chemical Examiner and the formal evidence of Moharrir Head Constable Baldev Singh and Constable Gurnam Singh was tendered on affidavits Exhibits PE and PF respectively.

The accused when examined under the provisions of section 313 of the Code of Criminal Procedure by the trial Court, pleaded innocence and false implication.

The trial Court acquitted the accused by doubting that the recovery of illicit liquor was effected from his possession on the ground that neither the Investigator had stated whether the accused was arrested or ''bailed out at the spot nor there was any documentry evidence in support of the accused having furnished anybond or produced before the trial Court for remand purposes.

Feeling aggrieved against the order of acquittal of the trial Court, the State has come up in appeal.

We have hoard'' the learned counsel for the parties. The acquittal of the accused respondent on the sole ground that ASI Kuldip Singh had failed to depose whether the accused was bailed out at the spot or produced before the Judicial Magistrate for remand on the next date or that there was not any documentary evidence on the file in order to show the release of the accused on bail, is not legally sustainable as the Investigator is not supposed to remember all these facts after lapse of a little less than two years, as recovery was effected on 23.7.1984, and, his statement was recorded on 341986, especially when Head Constable Sarwan Singh (PW2) had stated during crossexamination that the accused was released on bail at the spot and the possibility of the personal surety bonds of the accused being dislodged cannot be ruled out. It is noteworthy that in the seizure memo, as well as in the ruqa Exhibit PB, the name, parentage and place of the residence of the accused specifically figures and it is not a case of that type where the description of the accused given in these documents does not tally with his actual description. It was not suggested during crossexamination to any of the prosecution witnesses that some other person was apprehended or that personhad given his wrong particulars or that name of the accused has been substituted yet all the same it is of no consequence in view of the factum that the case suffers from certain infirmities which have not been taken into consideration by the trial Court, there is no option but to sustain th e acquit of the accused.

The inherent infirmities are that the police party w as holding nakabandi at Bus Stand Muktsar, in the area of Jallalabad town. The perusal of intimation. Exhibit PB, reveals that it was concluded at 6 30 p. p.m. after the alleged recovery of liquor and preparation of seizure memo etc. It would be broad day light by 6.30 p. m. in the month of July, as during those days the sunset occurs at about 7.30 p.m. So, there will be no dearth of availability. of independent witnesses. It is admitted by ASI Kuldip Singh (PW1) that the accused was apprehended from the habitation of the city, which in turn implies that the habitation of the city was surrounding the busstand. Under these circumstances, the ''lame excuse of the Investigator that no independent witness was then present at the busstand is not acceptable. According to ASI Kuldip Singh, the police was present at the busstand in connection with the investigation of a case under section 7 of the Essential. Commodities Act. Thus, the police was expected to join some nonofficial witnesses in connection with the above referred case. Under these circumstances, the possibility could not be ruled out that the accused was arrested from somewhere else and the recovery of the liquor was effected in some other manner. The recovery of heavy quantity of liquor from the possession of the accused does not lend due corroboration to the evidence of the official witnesses as the case property produced before the trial Court does not bear any identity marks.

Moreover, the perusal of the seizure memo. Exhibit PA, reveals that its contents were jetted down later on than the attestation of the witnesses, because of the spacing in between the lines and size of the words is increasing or becoming wider or bold towards the fagend of this document, which in turn implies that the Investigator had tried to cover the entire blank space between the attestation of the witnesses and rest of the memo. This circumstance creates doubt about the arrest of the accused and recovery of the liquor in the manner deposed to by these witnesses.

For the added reasons recorded above, no case is made out for interference with the order of acquittal of the trial Court and the appeal stands dismissed.